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Barr v. Cunningham

Supreme Court of Illinois

March 23, 2017

EVAN BARR, Appellee,
LAUREL CUNNINGHAM et al., Appellants.

          JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and Theis concurred in the judgment and opinion.



         ¶ 1 Plaintiff, Evan Barr, filed suit in the circuit court of Cook County against defendants, Township High School District 211 (District) and Laurel Cunningham, for injuries he sustained during a physical education class at James B. Conant High School (Conant). The lawsuit advanced to a jury trial. After all of the evidence was heard, the trial court entered a directed verdict for defendants. The court held that plaintiff failed to prove during his case-in-chief that defendants' conduct was willful and wanton, an exception to the supervisory immunity set forth in section 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (Act). 745 ILCS 10/3-108 (West 2010). The appellate court, with one justice dissenting, reversed and remanded for a new trial. 2016 IL App (1st) 150437. For the following reasons, we reverse the appellate court's judgment.

         ¶ 2 BACKGROUND

         ¶ 3 On June 3, 2010, plaintiff was playing floor hockey with 11 other students in his physical education class when a ball bounced off his stick and hit him in the eye, causing injury to his eye. In his second amended complaint, plaintiff alleged that Cunningham, the physical education instructor, was willful and wanton in failing to require the students to wear protective eyewear while playing floor hockey. In response, defendants asserted affirmative defenses alleging statutory immunity under sections 2-201 and 3-108 of the Act. 745 ILCS 10/2-201, 3-108 (West 2010). The parties filed cross-motions for summary judgment. The trial court denied both motions. The parties then proceeded to a jury trial, at which the following evidence was introduced.

         ¶ 4 In June 2010, plaintiff was 15 years old and a sophomore at Conant. On June 3, Cunningham allowed the students in the physical education class to choose one of several activities as part of a "heart rate monitor day." Plaintiff chose to play floor hockey with the same group of students with whom he had played floor hockey on 8 to 10 prior occasions. On each of these occasions, the students played floor hockey with plastic hockey sticks instead of wooden sticks and "squishy" safety balls instead of pucks. Cunningham was supervising the game, and all players were following the rules. Plaintiff was playing defense when an opposing player hit the ball toward him. The ball bounced off plaintiff's stick and hit him directly in the eye, causing injury and permanent dilation of his pupil.

         ¶ 5 Several witnesses testified that a box of safety goggles was stored in the same bucket as the safety balls in the equipment closet. However, there was no direct evidence that the goggles were purchased specifically for students playing floor hockey. Plaintiff testified that he probably would not have chosen to wear goggles had he known they were an available option.

         ¶ 6 Cunningham testified that she did not require students to wear safety goggles because she felt that the modified floor hockey equipment negated the need for protective eyewear. When asked why she did not instruct the students to wear goggles, Cunningham replied: "[m]ostly because I thought the equipment that we had was safe. I didn't think that an eye injury that was serious would even happen with the equipment that we had." Cunningham testified that she also imposed certain rules for the players' safety, including no high sticking, no checking, no jabbing, no slashing, no tripping, and no bending of the sticks. Students were instructed to keep the ball on the floor and to stop playing when Cunningham blew her whistle. Players would be penalized for breaking one of the rules.

         ¶ 7 Cunningham acknowledged that the ball would fly above players' waists at times during the games. However, she stated that she had not witnessed a student get hit in the face with a safety ball or stick prior to plaintiff's injury. According to Cunningham, no other student had suffered a serious injury from floor hockey prior to June 2010.

         ¶ 8 David Peña, the chairperson of the physical education department, testified that there was no rule mandating that students wear goggles while playing floor hockey. Peña further testified that there was no school district policy, law, or statute requiring the use of protective eyewear. Peña said he was not aware of any student other than plaintiff who had suffered an injury due to a lack of eyewear in a physical education class at Conant.

         ¶ 9 At the close of the evidence, defendants moved for a directed verdict. The trial court granted the motion and entered judgment for defendants. The court rejected defendants' claim of discretionary immunity under section 2-201 (745 ILCS 10/2-201 (West 2010)) of the Act but held that defendants were immune from liability as a matter of law pursuant to section 3-108 (745 ILCS 10/3-108 (West 2010)). The court based its holding on plaintiff's failure to present evidence of any willful and wanton conduct by defendants.

         ¶ 10 On appeal, a divided appellate court panel reversed the judgment of the trial court and remanded for a new trial on the merits. 2016 IL App (1st) 150437. The majority held that Cunningham's decision not to require students to wear the available safety goggles could be considered by a jury to be willful and wanton. The majority held, therefore, that the trial court erred in directing a verdict for defendants on the issue of supervisory immunity under section 3-108 of the Act (745 ILCS 10/3-108 (West 2010)). 2016 IL App (1st) 150437, ¶¶ 25, 31. The majority further held that the evidence did not support defendants' claim of discretionary immunity under section 2-201 of the Act (745 ILCS 10/2-201 (West 2010)). 2016 IL App (1st) 150437, ¶¶ 26-31. The dissenting justice argued that the trial court's judgment was correct because the evidence presented by plaintiff did not raise a substantial factual dispute as to whether defendants' conduct was willful and wanton. Id. ¶ 34 (Mason, P.J., dissenting).

         ¶ 11 This court granted defendants' petition for leave to appeal. Ill. S.Ct. R. 315(a) (eff. Mar. 15, 2016). We allowed the Illinois Trial Lawyers Association, as well as the Park District Risk Management Agency and the Illinois Governmental Association of ...

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